- Sedition is a colonial era law which has been challenged numerous times by the citizens of the country.
- The Supreme Court has numerous times upheld the law and invalidated the law as well, but the final legal status is yet to be decided.
- The law was used to curb the voices of the citizens in the British rule.
- Sedition is a violation of the Fundamental Right to freedom of speech and expression but several points have been put forward to substantiate.
- The article discusses the good and evil of the law along with the analysis of its history for clarity.
India is a democratic country that we got after decades of struggle; we lost many lives to the hands of the British rule and laws. After the Independence, the makers of the Constitution thought that it was important for the country to have a codified legal system which would be beneficial for all the generations to come.
In the recent days we have all seen the outrage of the public on the new laws being enacted and the arguments of both in favor and against the laws. After her daughter took part in an ostensibly anti-CAA play in Bidar, Karnataka, a single mother of an 11-year-old was charged with sedition. Sharjeel Imam, a JNU student, was charged with sedition over a remark he gave at an anti-CAA protest. In Mumbai, more than 50 people were charged with sedition for chanting pro-Sharjeel Imam slogans.
But no-one has paid attention to the existing laws that have brought a new wave of restrictions on the freedom of speech and expression. The Sedition law under Section 124A of the Indian Penal Code states that Sedition is committed when someone, through words or other means, incites or seeks to incite hatred or contempt for the Government established by law.
History of Sedition Law
Everyone is well aware of what sedition is, but what very few are aware of is why it came into existence. In the schools, children are taught of the freedom struggle that our ancestors had to go through to give us the life that we enjoy today. Sedition law came into existence to curb those revolts. The British rule was threatened and there was no scope for them to control the mass revolts. So they did the easiest thing to be done; bring a law that would curtail all the voices and revolutions.
The criminal law for India was codified in the form of the Indian Penal Code of 1860. This codified law did not have a provision of sedition; it was inserted in 1870 in the Chapter IV which contained provisions for offences against the State when the Wahhabi Movement started rising. This was introduced by James Stephen and was modified later in the IPC (Amendment Act), 1898. In a similar light, the Dramatic Performances Act of 1876 was also introduced which targeted the prevention of artistic expressions against the State.
The first case that was brought under the Section was the case of Queen-Empress v. Jogendra Chunder Bose and Ors.1[(1892) ILR 19 Cal 35]. The Age of Consent Act, 1891 was criticized by the editors of a Bengali Magazine for which they were charged under the sedition law. The publishers argued that sedition only punishes the writing of seditious material, not the publication of it, and they also questioned the law’s very existence. They argued that punishing people for exercising their rights was contrary to the law’s original meaning. The publishers could not be exonerated of legal duty just because they did not write the seditious content, according to the Calcutta High Court, because the magazine's circulation was meant to be read by the target audience. The distinction between the phrases ‘disapprobation’ (valid criticism) and ‘disaffection’ (any sentiment opposed to affection) was further emphasised by the High Court. The Court held that because only disaffection is punishable, sedition does not abridge people’s rights. This decision was however changed after a few years.
In Queen-Empress v. Bal Gangadhar Tilak and Keshav Mahadev Bal2[(1897) ILR 22 Bom 112], they were tried for sedition for allegedly inciting the murders of two British officials through speech. A single judge Bench of the Bombay High Court concurred with the HC's definition of "disaffection" and held that any "bad feelings" towards the Government are criminal, regardless of their intensity. In this approach, the HC effectively shut down any reasonable criticism. It went on to say that the offence of sedition does not have to have any material consequences. The offender's aim is paramount in sedition cases, and it can be inferred from the substance, audience, and circumstances of their seditious speech.
Bal Gangadhar Tilak was again tried for his article on attaining Swarajya (self-rule) for Indians in the case of Emperor v. Bal Gangadhar Tilak3[(1971) 19 Bom LR 211]. Tilak declared his allegiance to the British Crown but then attacked the civil service, claiming in Court that the civil service and the British Government were two separate institutions. Only criticism of the civil service that may be ascribed to the State should be declared seditious, according to the High Court. Several other freedom fighters including Mahatma Gandhi, Jawaharlal Nehru, etc. were also imprisoned under this law.
After India got freedom from the British Rule in 1947, the Constitution was drafted which gave the fundamental rights that the citizens enjoy today. The Freedom of Speech and Expression under Article 19 of the Constitution was introduced and sedition law was invalidated by the Punjab High Court as it put a restriction on the fundamental rights of the citizens in the case of Tara Singh Gopi Chand v. The State4[1951 CriLJ 449]. When the first Amendment to the Constitution was passed, the status of sedition was in dispute, so the Parliament introduced new grounds for restricting the Freedom of Speech and Expression, i.e., public order, relations with foreign states and incitement of an offence.
The landmark judgment of Kedar Nath Singh v. The State of Bihar5[1962 AIR 955], Kedar Nath Singh, a member of the Forward Communist Party of Bihar, was charged with sedition for making derogatory remarks about the ruling Indian National Congress Government. The Supreme Court clarified that Section 124A could not be used to stifle free expression, and that it could only be utilised if it could be demonstrated that the seditious remark in question incited violence or would cause public disorder. Kedar Nath’s speech did not amount to sedition since he was criticising the Congress party rather than the Indian Government, and the speech did not lead to any incitement to violence.
In the case of Balwant Singh and Ors v. State of Punjab6[(1995) 3 SCC 214], the Supreme Court was presented with a scenario in which the appellants had yelled slogans on the day former Prime Minister Indira Gandhi was slain. After reviewing the prosecution evidence on file, it was discovered that the appellants had only shouted those slogans a few times and that no one else had responded to them. Section 124A would have applied if the appellants had raised slogans with the goal to incite people or create unrest, or if the slogans had resulted in any other law and order issue.
In the case of Arun Jaitley v. State of Uttar Pradesh7[2016 (1) ACR 890], the Allahabad High Court had the opportunity to determine whether an essay opposing the Supreme Court's decision on the National Judicial Appointment Commission constituted sedition or not. It was decided that for an offence under Section 124A of the IPC to be committed, the remarks written or said must have a “pernicious tendency of causing public commotion or disruption of law and order.”
In its Consultation Paper on ‘Sedition’, published on August 30, 2018, the Law Commission of India stated that while the offence of sedition must be preserved to maintain national integrity, it should not be utilised to stifle free speech.
Why is Sedition still Existent?
The Indian Constitution stipulates that reasonable constraints according to Article 19 (2) can be put on this Right at any time in order to guarantee that it is exercised responsibly and that it is equally available to all citizens.
The Government can use the Sedition Act to confront anti-national, separatist, and terrorist elements. It aids in the defence of the elected Government against attempts to overturn it through violence and illegitimate means. The existence of a legally created Government is a necessary condition for the state’s stability.
In the same case of, Kedar Nath Singh v. State of Bihar, it was observed that Naxalites, Maoists, terrorists, and secessionists working in organised groupings with financial and logistical support from outside countries pose a threat to India. Fidayeen terrorists are still on the loose, and the number of cases involving the murder of innocent people is on the rise. India faces more obstacles than any other country on the planet.
Freedom of Expression cannot be construed to encompass the Right to revolt against the Government or to encourage discord and discontent. The provision was deemed necessary in the national interest because danger perception had increased, and it was so supported and maintained.
However, the line between Freedom of Speech and sedition must be drawn in the interests of national security, and it was decided that seditious utterances will not be charged with sedition until it can be proven that they encourage violence, create discontent, or cause public disruption.
Sedition Law in the World
Sedition law is not used only in India, but also in countries abroad. But how are the laws different from that of India or are they the same? In countries like South Korea, Australia and Indonesia, sedition law has been banned and declared as unconstitutional.
United States of America
The US Code prescribes for illegality when someone tries to knowingly teach or advocate for overthrowing the Government by force. But this is not related to Freedom of Speech and it is rarely used for prosecution under this law.
In Germany, there is no law for sedition but the term ‘Volksverhetzung’ which loosely translates to sedition, is used to making incitement of hatred against any race or religion to be illegal, unlike in India, where the law is used as a restriction to Freedom of Speech and Expression.
The laws in Canada for hate crimes and sedition are different. The citizens enjoy Freedom of Speech and Expression and there have been no cases of sedition after entering into the 20th century.
Sedition and seditious libel are no longer illegal under Section 73 of the Coroners and Justice Act 2009. This took effect on the 12th of January, 2010. Sedition by an alien (a person who lives in the country but is not a citizen) is, on the other hand, a crime.
The people who brought the sedition law into India have already held it illegal and changed their laws but in India it has not been done yet. India, the country which boasts of having the lengthiest Constitution, made after years of hard work and research into the Constitutions of various countries, has not taken any step to throw out this law which is a violation of the Fundamental Rights and has rather accepted it with open arms.
Countries all over the world are considering the legal status of sedition law. Though the sedition law has been challenged numerous times, there has been no decision that would invalidate the existence of sedition law. Taken into consideration the situation that the world is facing, it is not long that the law would give tyrannical powers to the Government and soon India would not stand as a democracy if this happens.